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Tony Egbuna Ford |
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Petition on his case |
Petizione sul suo caso |
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CLAIM THREE APPELLATE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE IN FAILING TO RAISE THE AKE CLAIM ON DIRECT APPEAL.
A. The Basis for the Claim Criminal defendants have the right to effective assistance of counsel on their first appeal of right. Evitts v. Lucey, 469 U.S. 387, 396-397 (1985). Ineffective assistance of appellate claims are governed by the standards of Strickland v. Washington. Smith v. Robbins, 528 U.S. 259, 285-286 (2000). Thus, a habeas petitioner must first show that appellate counsel was "objectively unreasonable" in failing to raise a claim - i.e., that counsel failed to discover a non-frivolous issue and brief it. Id. at 285. Second, the petitioner must show that "but for his counsel's unreasonable failure to file a merits brief [on this issue], he would have prevailed on his appeal." Id. See Briseno v. Johnson, 274 F.3d 204, 207 (5th Cir. 2001). Mr. Ford's claim under Ake v. Oklahoma that he was denied due process by the denial of his Motion for Appointment of Identification Expert was a non-frivolous claim. The allegations in Claims One and Two - that the motion adequately set out the need for such an expert and that the denial of this expert was not harmless, indeed was highly prejudicial - demonstrate that appellate counsel's failure to raise and brief this claim on appeal was objectively unreasonable. Further, the allegations in Claims One and Two demonstrate a reasonable probability that, if raised, Mr. Ford's appeal would have succeeded. Indeed, as Jordan v. State, supra, demonstrates, Mr. Ford would have secured a new trial. Jordan was decided only four months after the Court of Criminal Appeals decided Mr. Ford's case. 1 Accordingly, appellate counsel was ineffective for failing to raise and brief Mr. Ford's Ake claim on appeal. B. State Court Proceedings This claim was presented among the claims numbered 1-5 in the Amended Original Application for Writ of Habeas Corpus in the state courts. The state courts rejected the claim on the merits.
1Mr. Ford's case was decided on February 21, 1996 while Jordan was decided on June 12, of that year. |